The Cameron v Woollahra Municipal Council ruling sets the legal landscape for certifiers, revisiting the pivotal Ralan judgment and its impact on development consents.

Introduction

The NSW Court of Appeal’s judgment in Cameron & Green v Woollahra Municipal Council & Anor (Cameron) offers significant insights into the current legislative framework surrounding construction certificates, development consent, and the powers of certifiers under the Environmental Planning and Assessment Act 1979 (EPA Act). In particular, the case revisits the impact of the 2014 case of Burwood Council v Ralan Burwood Pty Ltd (No 3) (Ralan) on judicial review for legal errors, and explores how the principles established in that case apply in the current legal context.

Historical Background of the Ralan Case

The Ralan judgment, handed down by the NSW Court of Appeal in 2014, centered on a development in Burwood where the plans and specifications in a construction certificate were inconsistent with the original development consent. In that case, Burwood Council sought to invalidate the construction certificate issued by a private certifier. The Court ruled that a construction certificate issued in breach of planning laws does not automatically lead to invalidity unless explicitly stated by the legislation.

One of the key points in Ralan was the acknowledgment of Clause 145(1) of the Environmental Planning and Assessment Regulation 2000, which forbade certifying authorities from issuing certificates that were “inconsistent with” the development consent. However, the Court took the position that the mere fact of inconsistency between the certificate and the consent did not automatically void the certificate. Instead, it examined whether Parliament intended for such breaches to result in invalidity. This principle has since been followed in subsequent cases.

The Current Case: Revisiting Ralan

In the 2024 judgment of Cameron & Green v Woollahra Municipal Council & Anor, the appellants challenged the legal reasonableness of a certifier’s decision to issue a construction certificate for a proposed development in Bellevue Hill.

The primary issue at stake was whether the certifier’s decision was consistent with the modified development consent and whether a finding of inconsistency would render the certificate invalid.

The primary judge held that the certifier’s decision was a legal error due to being “legally unreasonable”. This was because there was a clear condition in the development consent that prohibited excavation at the cellar level, a condition which the certifier had effectively disregarded when issuing the certificate​.

The appellants sought to rely on Ralan to argue that the finding of “jurisdictional error” (that is, a legal error) did not necessarily result in the invalidation of the certificate. They contended that Ralan’s principles should be extended to cover their situation where there was a finding that the decision was “legally unreasonable”. They suggested that not every error would lead to invalidity unless Parliament explicitly said this in the legislation.

However, the Court found that Ralan does not extend to cases involving legal errors arising from “legal unreasonableness”.

Difference between Ralan and Cameron

The decision in Ralan was grounded in a detailed interpretation of the statutory provisions that governed the validity of construction certificates under the EPA Act. The Court in Ralan focused on whether an inconsistency between a construction certificate and the development consent would automatically render the certificate invalid. The ruling established that inconsistency alone was insufficient to invalidate a certificate unless the legislation explicitly mandated that outcome. This approach underscored the finality and certainty of construction certificates in the statutory framework.

However, in the Cameron v Woollahra judgment, the focus shifted away from statutory interpretation and moved into the realm of “judicial review” (i.e. review of the judiciary of administrative decision-making), specifically addressing “jurisdictional error” (i.e. legal errors). The Court determined that the certifier’s decision to issue the certificate was “legally unreasonable” due to a clear breach of the development consent’s conditions, particularly the prohibition on excavation at the cellar level.

Unlike Ralan, which dealt with whether inconsistencies automatically invalidated a certificate, Cameron examined whether the certifier’s actions amounted to an error so serious that it nullified the certificate.

This distinction is crucial, as it emphasizes the broader role of judicial review in ensuring that certifiers act within legal bounds, even when statutory provisions like those in Ralan suggest finality in their decisions​​.

Legal Context and Implications

The judgment in Cameron illustrates the application of judicial review in development disputes and highlights the tension between certifiers’ decisions and compliance with development consents.

While Ralan focused on statutory interpretation and the validity of certificates, this case emphasises the evolving legal standards concerning legal errors. In this context, a finding of legal unreasonableness may render a certifier’s decision invalid, particularly when clear statutory conditions, such as prohibitions on excavation, are violated.

Further, the judgment reaffirms that certifiers must act within the bounds of legal reasonableness. As the Court explained, legal unreasonableness arises when a certifier’s decision lacks an evident or intelligible justification, particularly in situations where the construction plans clearly contravene explicit conditions in the development consent​​. The Court ultimately upheld the invalidity of the construction certificate in part, focusing on the cellar-level excavation.

Key takeaways

This judgment underscores the enduring relevance of Ralan in guiding the interpretation of construction certificates within the statutory framework of the EPA Act. However, it also sets clear boundaries for the application of Ralan in cases of judicial review, particularly where jurisdictional error is concerned. The ruling serves as a reminder that while Ralan limits the automatic invalidation of certificates, findings of legal unreasonableness in the exercise of certifiers’ functions can still result in significant legal consequences, including partial invalidation.

More reading

You can read the full judgment below.